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Consequences
subsequent to a ship collision

—Capt. Ashwani
Jhingan

The after-effects of
a ship collision on marine and human life are immeasurable and have traumatic
consequences. The ship involved in a collision suffers from heavy structural and
stability damage. Apart from the damage to the ship, collision results in the
following effects:

a) Loss of human
life and serious injuries

b) Environmental
impact due to oil spills

c) Financial losses
to the local fraternity and communities

d) The owners of the
ships having financial
losses and penalty, distressed vessel, wreck, salvage, general average
contributions, sacrifices and expenditures

f) Safety of
navigation through
channels and interference with the port operations

g) Cargo claims

As a matter of
"substantive" law, collisions at sea may involve the application of
the "law of negligence". Under the established neighbourhood
principle, a ship owes a "duty of care" to other ships navigating the
same seas. The case study of "Bacchus and the Neptune"
explains five important consequences of a ship’s collision:

1. Application
of the "law of negligence" for the collision and apportionment of the
fault:

The party which
claims for the damage should establish the existence of a "duty of
care" owed to it, and
that "duty has been breached" and
"damage caused by that breach".

(a) The Duty of
Care:

There is a "mutual
duty of reasonable care" between "the Bacchus and the Neptune",
since they navigated in the same sea. Both crews should have ‘reasonably
foreseen’ that their actions would be likely to injure those they ‘ought
reasonably to contemplate’ as being so affected (Donoghue v Stevenson).

(b) Breach of Duty:

It is a difficult
"issue of law" to establish. The "defendant’s" conduct
must have fallen below the "legal standard of care" that required him.
In the general law of "negligence",
the conduct of those navigating a ship involved in a collision is judged by the "standards
of prudent seamanship".

In such cases,
the shipowner is "vicariously liable" as the employer of the crew.
The test as to whether there has been professional negligence is the
standard of the "ordinary skilled man exercising and professing to
have the relevant skills" (Bolam v Friern Hospital). The
relevant standard is largely found in the COLREGs 1972.

(i) The Bacchus:
In the present case, the Bacchus has the Neptune
on her starboard, so the Bacchus is ‘give way’ vessel.

Therefore, she shall
keep out of the way and shall, if the circumstances of the case admit, avoid
crossing ahead of the other vessel-COLREGs, R.15. This violation is a
continuing one, with no corrective action, thus the Bacchus also
fails in her obligation to take positive action made in ample time, with due
regard to the observance of good seamanship-R.8(a).

(ii) The Neptune:
As a ‘stand on’ vessel,
the Neptune’s duty is to keep her speed and course-R.17 (a) (i).
However, according to R.17 (a) (ii), the Neptune was obliged to take
action to avoid collision by her manoeuvre alone, as soon as it became apparent
to her that the Bacchus was not taking appropriate action in compliance
with these Rules.

Moreover, under R.17
(b), when the Neptune found herself so close that collision could not be
avoided by the Bacchus alone, she shall take action as would best aid to
avoid collision.Neptune
should have taken a hard turn to port but just made a modest turn. This
action was likely to be "below the standard of ordinary skilled men
exercising and professing to have the skill of crew".

(ii) Conclusion on
Breach of Duty: On the balance of probabilities-
(The City of London), Apparently, Bacchus breached her duty in attempting
to cross ahead of the Neptune while the Neptune was in breach in
just making a modest turn which was not enough to avoid the collision.

(c) Damage Caused by
the Breach of Duty

Even if the
"claimant" establishes breach by the "defendant", it must
still prove that
the loss would not have occurred but for the breach (Barnett v Chelsea and
Kensington HMC). Both vessels merely had to comply with the crossing rules, but
for the Bacchus’s failing in this regard, the collision would not have
happened, and so causation is established here.

(d) Apportionment

It is not that Neptune’s
faults were so minor that she should attract only a "de minimis"
share of the blame.
There was a real fault, and decisive action under R. 17 (a) (ii) or
inappropriate action under R.17 (b) would have avoided the collision. Therefore,
a fair apportionment may be 80/20 in favour of the Neptune (The Topaz and
Iraqua).

2. Salvage

(a) Sisyphus SA:
Sisyphus SA signed an LOF2000 salvage contract with Neptune, with
"SCOPIC" clause and offered salvage services. The
subsequent explosion of the vessel resulted in producing a low
value salved fund, which were only some cargo and the wreck value.

(b) Hesperides
Salvors Inc.: The "Atlas",
salvage tug owned by Hesperides Salvors Inc. assisted the Bacchus and
also, LOF2000 was signed and SCOPIC incorporated and invoked. This
salvage service is successful, so the value of the salved property is high.

3. General
Average: The specific calculation is done by professional "G.A."
adjustor according to York Antwerp Rules 1994. It was concluded that there
is no G.A. issue arising for the Neptune; then the focus will be on the Bacchus.

4. Oil
pollution

(a) The Neptune:
This vessel was an oil tanker. The pollution was in Sicily, Italy. Italy was a
party to the 1992 CLC, 1992 Fund and the Supplementary Fund (2003 Protocol). All
the three tiers are available to the victims for the pollution.

(b) The Bacchus:
This is not an oil tanker. The Bunkers Convention governs this kind of
situation, which has only one compensation layer.

5. Limitation
of liability

(a) The Neptune:
"Pluto Inc", the "shipowner", the "Master, crew and
other employees" of it can limit their liability.
It is highly likely that as the carrier, it can exempt its liability under
Hague/Hague-Visby Rules. As the vessel has already gone, it was stated that
"Pluto Inc" might not build the limitation fund.

(b) The Bacchus:
The "Jupiter AS" is as a "shipowner" and its "employees"
can also limit their liability. The collision is "both to blame".
Perhaps, the Bacchus might take main responsibility for the collision.
Therefore, the other vessel will have a claim against it for the vessel
destroyed and subsequent oil pollution compensation
which the Neptune has to pay; also, the "cargo owner" of the Neptune
might act a claim against it "in tort".

(Article compiled
and contributed by Capt. Jhingan, Chairman and Managing Director of Malaxar. He
is also an Advocate of Bombay High Court. Capt. Jhingan can be contacted at
legal@malaxar.com. Views expressed here are his own.)